H. R. 8407

Chairman RUSSELL. The next bill is H. R. 8407, which is another departmental bill, which has as its purpose the enactment of a statute applicable to all of the Armed Forces that would require enlisted members to make up time lost during their enlistment because of their own misconduct.

(H. R. 8407 is as follows:)

[H. R. 8407, 84th Cong., 2d sess.]

AN ACT To require enlisted members of the Armed Forces to make up time lost during enlistments

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That an enlisted member of the Army, Navy, Air Force, Marine Corps, or Coast Guard who—

(1) deserts;

(2) is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority;

(3) is confined for more than one day while awaiting trial and disposition of his case, and whose conviction has become final;

(4) is confined for more than one day under a sentence which has become final; or

(5) is unable for more than one day, as determined by competent authority, to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct ;

is liable, after his return to full duty, to serve for a period which, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted.

SEC. 2. The following are repealed:

(1) Section 1 (article 107) of the Act of June 4, 1920 (ch. 227, 41 Stat. 809), as amended by section 6 (a) of the Act of May 5, 1950 (ch. 169, 64 Stat. 145).

(2) The proviso of the fourth paragraph under "Offieers for Engineering Duty Only" of the Act of August 29, 1916 (ch. 417, 39 Stat. 589), as amended by the Act of July 1, 1918 (ch. 114, 40 Stat. 717 (2d par.)).

(3) The Act of May 21, 1928 (ch. 650, 45 Stat. 620).

(4) Clause (3) and the last sentence of subsection (a), and subsections (b) and (c), of section 367 of title 14, United States Code.

SEC. 3. Section 367 (a) of title 14, United States Code, is amended by renumbering clauses "(4) "and “(5)" as “(3)” and “(4)", respectively. Passed the House of Representatives July 2, 1956. Attest:

RALPH R. ROBERTS, Clerk.

Chairman RUSSELL. The Navy now has permissive authority to allow its servicemen to make up lost time. If the serviceman does not so elect, and the Department does not approve the election prior to the expiration of the enlistment, the lost time cannot be made up. In some cases this action is desirable in order that the member concerned might qualify for a discharge under honorable conditions.

In contrast, enlisted members of the Army and Air Force are compelled by law to make up any time lost because of their misconduct. This bill apparently would place the Armed Forces on an equal basis. The departmental witness is Capt. H. S. Roberts, from the Bureau of Naval Personnel.

Have a seat, Captain.

STATEMENT OF CAPT. H. S. ROBERTS, HEAD OF ENLISTED PERFORMANCE BRANCH, PERFORMANCE DIVISION, BUREAU OF NAVAL PERSONNEL, DEPARTMENT OF THE NAVY

Captain ROBERTS. Sir, I have a prepared speech I can offer for the record.

Chairman RUSSELL. Very well, sir. Your statement will be received and be incorporated in the record.

(The statement referred to is as follows:)

Mr. Chairman and members of the committee, I am Capt. H. S. Roberts, head of the Enlisted Performance Branch, Performance Division, Bureau of Naval Personnel. I appreciate the opportunity to appear before this committee for the purpose of recommending enactment of H. R. 8407. This bill is designed to establish a law, uniform in its application to Army, Navy, Air Force, Marine Corps, and Coast Guard, which will make an enlisted man of any of these services liable to make up time lost by reason of his misconduct.

The act of May 21, 1928 (34 U. S. C. 183a), provides that enlisted men in the naval service who absent themselves without authority for more than 1 day or are confined for more than 1 day under sentence or are confined while awaiting trial and disposition of the case, if the trial results in conviction, may be permitted to serve for such period as shall, with the time served prior to such absence or confinement, amount to the full term of the enlistment.

The statute which applies to enlisted personnel of the Army and Air Force (10 U. S. C. 629), on the other hand, provides that an enlisted man shall be liable to make up time lost under the same circumstances as those specified in the Navy law. The law applicable to the Coast Guard (14 U. S. C. 367), is, as in the case of the Navy, permissive rather than mandatory.

In the case of all of the services, including the Coast Guard, the applicable law requires the making up of time in excess of 1 day lost by reason of injury, sickness, or disease resulting from the intemperate use of drugs or alcoholic liquors; or other misconduct.

H. R. 8407 would repeal the existing provisions of law affecting each of the services. Enactment of the bill would provide completely uniform provisions for the enlisted men of all services, which would be substantially the same as those which now are applicable to the Army and Air Force.

It is considered that the enactment of H. R. 8407 would serve as a deterrent against the commission of offenses by Navy, Marine, and Coast Guard personnel since it would transfer the option as to whether lost time should be added to the normal term of enlistment from the offender to the service of which he is a member.

More important, however, is the fact that it would make possible the restoration to duty of many enlisted persons who could not under the present naval law, as interpreted by the Comptroller General, be restored. In meritorious cases the Navy and Marine Corps afford persons sentenced to punitive discharges the opportunity of earning a discharge under honorable conditions by performing further honorable service.

This opportunity is given to those who show by their conduct and service motivation that they may be suitable for retention in the service. In such case the punitive discharge is suspended at the request of the enlisted man and he is returned to active duty after completing his sentence. If he satisfactorily serves the period of his probationary service the man's punitive discharge is remitted. It happens not infrequently that a man who is considered to be deserving of a chance to earn a discharge under honorable conditions is denied that opportunity by reason of the expiration of his enlistment.

As previously mentioned, the law affecting the naval service permits an enlisted man to make up lost time due to absence or confinement but the Comptroller General has ruled that to avail himself of the opportunity he must make application therefor before discharge or expiration of enlistment and that his application must be approved before his enlistment expires. Thus, a man who would ordinarily be placed on probation and allowed to prove his eligibility for discharge under honorable conditions can be deprived of that most desirable opportunity by the fortuitous circumstance of the date of expiration of his enlistment. If it were possible to extend his enlistment by the period of lost time he would normally have sufficient service remaining after his release from confinement to complete a probationary period.

The law affecting the Army and Air Force, which makes a man liable to make up the time lost rather than permitting him to do so, does not require the submission and approval of an application before his enlistment expires. Under that law, a man who is serving a sentence at the time his enlistment expires can be returned to duty upon release from confinement for the purpose of making up the time he has not served during his enlistment. He can serve a probation

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ary period while making up that lost time and, if he proves his worth, earn a discharge under honorable conditions. Since the Navy is not always in a position to determine a man's eligibility for probation before his enlistment expires, the Navy's clemency procedure would beneft by the enactment of H. R. 8407, which will place all of the services on the same basis with respect to making up lost time.

The Department of the Navy, on behalf of the Department of Defense, strongly urges favorable consideration of H. R. 8407.

Chairman RUSSELL. Captain, as the law now stands, the Navy can allow any person who is in the service who has lost time due to their own misconduct to make it up.

Captain ROBERTS. Yes, sir.

Chairman RUSSELL. How often is that applied? Do you ordinarily permit the man to make up the lost time?

Captain ROBERTS. If he meets the requirements for clemency and restoration of duty, yes, sir, if he is a worthy individual.

Chairman RUSSELL. Well now, in the Army and the Air Force, as I understand it, under existing law, unless a man does make up his lost time, he is discharged under conditions other than honorable.

Captain ROBERTS. I presume he would have-if he had a punitive discharge awarded to him, and they did not force him to stay on probation, I presume he would go out with his punitive discharge. Chairman RUSSELL. Why is this legislation necessary?

Captain ROBERTS. To make the services uniform in their requirements for making up the lost time.

The Army and the Air Force now make the individual liable for it, whereas our regulations or law makes it only permissible for the man to volunteer to make up his lost time.

If this legislation is enacted, it will make the laws uniform for all of the services.

Chairman RUSSELL. Why is it not desirable to place the Navy on the same basis as the Army and the Air Force, rather than to place the Army and the Air Force under the Navy rule? It seems to me that the rule which applies in the case of the Army and the Air Force might be more conducive to good order and discipline than the Navy rule.

Captain ROBERTS. That is correct, sir. The bill, if passed, is essentially the same as the Army and the Air Force have now.

Chairman RUSSELL. So it does, then―

Captain ROBERTS. For all practical purposes, it does put us under the same rules and regulations that apply to the Army and the Air Force.

Chairman RUSSELL. So it will have the effect of tightening up the Navy's regulations for dealing with its personnel?

Captain ROBERTS. Yes, sir.

Chairman RUSSELL. Senator Saltonstall?

Senator SALTONSTALL. No questions.

Chairman RUSSELL. Senator Stennis?

Senator STENNIS. No questions.

Chairman RUSSELL. Senator Ervin?

Senator ERVIN. No questions.

Chairman RUSSELL. Thank you, Captain Roberts.

Captain ROBERTS. Thank you, sir.

(Subsequently, in executive session, the committee unanimously voted to report the bill favorably, without amendment, as covered by S. Rept. 2549.)

H. R. 9246

Chairman RUSSELL. The next bill is H. R. 9246, a departmental bill that would permit payments for unused accrued leave to be made to survivors of military personnel.

(H. R. 9246 is as follows:)

[H. R. 9246, 84th Cong., 2d sess.]

AN ACT To amend the Armed Forces Leave Act of 1946 by authorizing payments to survivors of former members for unused leave credit

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the last sentence of section 4 (c) of the Armed Forces Leave Act of 1946, as added by section 1 of the Act of August 4, 1947 (37 U. S. C. 33 (c)), is amended to read as follows: "Settlement and compensation in accordance with this subjection shall, in the case of a member or former member of the Armed Forces who dies after retirement or discharge and without having received that compensation, be made to the survivors of that member or former in the manner prescribed in section 6 (b) of this act." SEC. 2. This act takes effect August 9, 1946. No settlement and compensation may be made under this act in the case of a member or former member who died before the date of enactment of this act unless application is made to the Secretary concerned within 2 years after the date of the enactment of this act. SEC. 3. Any settlement and compensation made under this act shall be made from current applicable appropriations.

Passed the House of Representatives July 2, 1956.
Attest:

RALPH R. ROBERTS, Clerk. Chairman RUSSELL. Normally a member is paid for unused accrued leave at the time of his separation from active duty, but there are some cases, including those of persons who are mentally incompetent, in which settlements cannot be made immediately. If the member concerned dies before settlement, there is no authority for paying the amount of unused leave to his survivors.

It appears that the practice governing civilian employees of the Government is different, in that their survivors are entitled to payments representing unused accrued leave, and that this bill would place military personnel on a parity with civilian employees.

The departmental witness is Lt. Col. Robert C. O'Hara, from the Directorate of Finance, Headquarters, United States Air Force. Be seated, Colonel O'Hara.

STATEMENT OF LT. COL. ROBERT C. O'HARA, DIRECTORATE OF FINANCE, HEADQUARTERS, USAF

Colonel O'HARA. Mr. Chairman, I have a prepared statement which I would like to submit for the record; and, if there are any questions by the committee, I am in a position to answer them.

Chairman RUSSELL. The statement will be received and incorporated in the record.

(The statement referred to is as follows:)

Mr. Chairman and members of the committee, I am Lt. Col. Robert C. O'Hara of the Directorate of Finance, Headquarters, United States Air Force. The Air Force has been designated as the Department of Defense representative for H. R. 9246. I appreciate this opportunity to appear before you in support of that bill.

H. R. 9246 will eliminate an inequity created by the last sentence of section 4 (c) of the Armed Forces Leave Act, as amended. This section restricts payment of lump-sum leave settlement at the time of discharge or retirement to "living members or living former members." Prior to the addition of section 4 (c) by the act of August 4, 1947, section 6 (b) of the 1946 act allowed payment for accrued leave to survivors of discharged members who died prior to settlement of their leave account.

When the lump-sum settlement provision was enacted, it was apparently assumed that such leave payment would be made at the time of separation, discharge, or retirement, and therefore, no need existed to authorize payment to survivors. The legislative history does not indicate that the problem of death after separation but prior to settlement was brought to the attention of the Congress during their consideration of that legislation.

The restriction of payment to a living member or former member has created a difficult problem because some members did not or could not receive their leave payment at the time of separation. There are two major reasons for this— (1) At time of separation, the individual's leave statement may not properly record all of the leave credit actually due him. This requires an administrative audit to determine the correct balance of his leave account which necessarily creates a delay in settlement of that account; (2) in the case of a member discharged or retired by reason of mental incompetence, statutory requirements often necessitate the appointment of a trustee and legal action to accomplish this is time consuming.

In both instances, if the former member dies after discharge or retirement, but prior to settlement of his leave account, his survivors are deprived of the leave payment because such is only payable to a living member or living former member under current law.

Enactment of this bill will remove these inequities and will result in future administrative savings to the Government.

It is not an easy task to attempt to convince the survivors of such personnel that through circumstances due to no fault of theirs or of the deceased former member, the Government cannot pay the leave settlement which was actually due the former member on the date of his discharge or retirement. Their appeals, often through congressional members, require extensive research and correspondence. In one case, on January 9, 1956, the General Accounting Office denied payment for accrued leave settlement to the sister of a deceased Air Force captain who had been paid by check for his leave credit at the time of his discharge, but he had failed to negotiate the check prior to his death.

Very recently the Department of the Army found their problem in this area was of greater magnitude than originally estimated. They now have approximately 1,000 cases, which are increasing at the rate of 8 per month and the money involved amounts to approximately $140,000. The Department of the Air Force has 5 known cases involving approximately $5,000 and the Department of the Navy has no known cases.

Enactment of H. R. 9246 will cause no increase in budgetary requirements of the Department of Defense.

In conclusion the Air Force on behalf of the Department of Defense urges favorable consideration of this bill.

Chairman RUSSELL. The statement, I believe, gives the approximate number of cases that are affected annually.

Colonel O'HARA. That is correct, Mr. Chairman. The statement indicates that at the present time there are 5 known cases in the Air Force, and 1,000 cases in the Army. The Navy has no known cases at the present time.

Chairman RUSSELL. This merely permits the survivor of a man who for any reason has not been paid any pay that is due him, whether it is unused leave or not

Colonel O'HARA. This specifically is for unused leave, Mr. Chair

man.

Chairman RUSSELL. You already have a statute for other payments? Colonel O'HARA. That is correct, sir.